Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, June 30, 2014

Bill Clinton on medical marijuana: "I think we should leave it to the states"

A couple of weeks ago, likely 2016 presidential candidate Hillary Clinton said medical marijuana should be available for some patients under appropriate circumstances.  Her husband, former president Bill Clinton, appears to have gone a bit further in support of marijuana law reform in these remarks on Meet the Press over the weekend:

 

"I think there's a lot of evidence to argue for the medical marijuana thing," Clinton said. "I think there are a lot of unresolved questions, but I think we should leave it to the states. This really is a time when there should be laboratories of democracy, because nobody really knows where this is going."

 

While Clinton stopped short of endorsing legalization at the federal level, he said he supports states' experimentation.

 

"There’s all these questions, and I think that I like where it is now," he said. "If the state wants to try it, they can. And then they’ll be able to see what happens.”

June 30, 2014 in Current Affairs | Permalink | Comments (0)

Friday, June 27, 2014

Oregon joins Alaska and Florida as states for marijuana reformers to watch extra closely in campaign 2014

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As reported in this Christian Science Monitor article, headlined "Marijuana: Oregon and Alaska could be next to legalize recreational use," a submission of petition signatures yesterday in the Beaver State now seems to make likely that at least three states will have significant marijuana reform initiatives before voters in November 2014:

While the fight is heating up in Florida over a ballot measure to legalize medical marijuana, voters in Oregon and Alaska will decide whether to join Colorado and Washington in legalizing recreational use.

If marijuana advocates have their way, the number of states where recreational pot is legal could double this year. On the November ballot in Oregon and Alaska are measures allowing the sale of recreational marijuana to adults. If those initiatives pass, the two states would join Colorado and Washington in legalizing cannabis.

Meanwhile, Florida voters will decide on a constitutional amendment legalizing the use of marijuana for medical purposes. That would make it the 24th state, plus the District of Columbia, to legalize medical marijuana.

In Oregon Thursday, supporters of marijuana legalization turned in 145,000 signatures – far more than the 87,213 valid signatures of registered voters necessary to qualify as a ballot initiative. “The Control, Regulation and Taxation of Marijuana and Industrial Hemp Act strictly regulates marijuana sales and possession,” according to New Approach Oregon, the advocacy group that submitted signatures to the Oregon secretary of state. “It legalizes the use of marijuana by adults only and taxes marijuana and its products to generate money for education, public safety, drug treatment, and drug prevention.”

Initiative Petition 53, as the measure is also known, would allow adults to possess up to eight ounces of marijuana and up to four plants. Sales would be subject to a flat tax of $35 per ounce for marijuana flowers, $10 per ounce of marijuana leaves, and $5 per immature cannabis plant....

In Alaska, a November ballot measure would legalize the adult possession of up to one ounce of cannabis as well as the cultivation of up to six plants (three flowering) for personal consumption, according to “The Daily Chronic,” a newspaper produced by marijuana reform activists. It would also allow for the establishment of licensed, commercial cannabis production and retail sales of marijuana and marijuana-infused products to those over the age of 21....

Polls show a majority of Floridians support medical marijuana legalization, but constitutional amendments need a 60 percent majority in order to pass. Still, a Quinnipiac University poll last month showed 88 percent support for allowing adults to legally use marijuana for medical purposes, if a doctor prescribes it. By a smaller 53-42 percent majority, Florida voters support allowing adults to legally possess small amounts of marijuana for personal use, according to this poll.

While proponents of the referendum got a head start in fundraising, deep-pocketed Republicans have since jumped into the battle. The Drug Free Florida campaign, which opposes the amendment, has raised $2.7 million, including a $2.5 million contribution from Las Vegas casino magnate Sheldon Adelson, a major Republican donor. Earlier this month, the nonpartisan Florida Sheriffs Association began a separate “educational campaign” against the amendment....

The Florida amendment is also enmeshed in the hot race for governor. Republican Gov. Rick Scott opposes it, while former GOP Gov. Charlie Crist, who is seeking to return to the office as a Democrat, supports it.

June 27, 2014 in Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, June 26, 2014

So far, no Colorado marijuana stores have been found to have sold to minors

The Denver Post reports today that police inspections have not found any incidents of Colorado marijuana stores selling to minors:

Police have so far sanctioned no recreational marijuana stores for selling to minors during underage compliance stings across the state, according to the Colorado Department of Revenue.

 

Authorities in Denver and Pueblo, working with regulators from the state Marijuana Enforcement Division, have conducted 20 undercover stings in which they see whether a store will sell pot to someone under 21. Sixteen of the compliance checks have occurred in Denver, home to most of the state's recreational marijuana stores.

 

So far, no store has sold to someone under 21 in the checks.

As the Toke of the Town blog notes, this compares very favorably to liquor stores, where Colorado authorities typically find a good number of violations every year.  

Of course, direct sales are not the only way that legal marijuana might make its way to underage users.    As with alcohol, an adult who legally buys from a marijuana store could share with a minor (or act as a straw purchaser for a minor.)  The extent to which this sort of thing is happening--and the extent to which it results in any increase in availability or use among teens--remains to be seen.  But for now, it is certainly good news for regulators that no marijuana stores have been found to be selling to minors. 

June 26, 2014 in Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, June 24, 2014

Article examines the impact of marijuana legalization on whether high school seniors plan to use marijuana

From the International Journal of Drug Policy comes this article with the catchy title "Correlates of intentions to use cannabis among US high school seniors in the case of cannabis legalization."  The article is behind a paywall and I haven't yet attempted to track it down through the library but the abstract indicates that high school seniors self-report that they would be slightly more likely to want to use marijuana if it were legal.  

Here are the basics from the abstract: 

This study examined intentions to use among US high school seniors if cannabis were to become legally available.

 

Ten percent of non-cannabis-using students reported intent to initiate use if legal and this would be consistent with a 5.6% absolute increase in lifetime prevalence of cannabis use in this age group from 45.6% (95% CI=44.6, 46.6) to 51.2% (95% CI=50.2, 52.2). Eighteen percent of lifetime users reported intent to use cannabis more often if it was legal. Odds for intention to use outcomes increased among groups already at high risk for use (e.g., males, whites, cigarette smokers) and odds were reduced when friends disapproved of use. However, large proportions of subgroups of students normally at low risk for use (e.g., non-cigarette-smokers, religious students, those with friends who disapprove of use) reported intention to use if legal. Recent use was also a risk factor for reporting intention to use as often or more often.

June 24, 2014 in Recreational Marijuana Data and Research | Permalink | Comments (0)

Cocaine smuggled by being baked into cookies

Though not a marijuana story, this BoingBoing post made me think back to an episodes of the classic TV sitcom Taxi and I could not resist posting a clip.  The BoingBoing headline: "$50k worth of cocaine baked into delicious cookies seized at US airport."  And here's a scene from the Taxi episode:

 

June 24, 2014 in Film, Food and Drink | Permalink | Comments (1)

Saturday, June 21, 2014

Citing Windsor, marijuana defendant aggressively attacks federal prosecution

This interesting local article from Michigan, headlined "Attorney says marijuana wrongly classified as dangerous drug, federal prosecution unfair," highlights interesting arguments being made in a local federal prosecution:

A West Michigan man facing federal marijuana charges has filed a constitutional challenge based, in part, on disparate federal prosecution in different states. Shawn Taylor, the alleged leader of a marijuana grow operation, also argues that marijuana has medicinal value and should not be classified as a Schedule 1 drug -- the designation for the most dangerous drugs.

Taylor is seeking an evidentiary hearing on the issues before U.S. District Judge Robert Jonker in Grand Rapids.  “We’re raising arguments that have really never been raised before in a federal marijuana case,” former Kalamazoo attorney John Targowski, now practicing in Santa Monica, Calif., said on Thursday, June 19, after he filed an 86-page brief on behalf of his client. “We’re arguing that cannabis is wrongly scheduled -- it has medicinal value,” Targowski said.

Taylor is one of 37 people arrested for alleged roles in grow operations in Kent, Muskegon, Oceana and Ottawa counties and Traverse City.

Targowski said that a U.S. Supreme Court decision invalidating the Defense of Marriage Act should have bearing on marijuana cases.  “Recognizing the historical support for defining marriage as between one man and one woman, the court determined that it was the duty of the judiciary to rectify past misperceptions which result in constitutionally unsound legislation,” Targowski wrote in court documents.

“Like the long held beliefs regarding the marital relationship, the long held beliefs about the effects of marijuana have evolved. While the former evolution has been the result of societal ideologies, the latter is predicated on scientific evidence, and therefore, can be more readily established through an evidentiary hearing.”

Targowski has asked that Jonker consider declarations of three experts, including a former FBI supervisor and a physician, to establish there is no rational basis to treat marijuana as a controlled substance.  Medical science has documented that “marijuana has a notably low potential for abuse,” Targowski wrote.

He said the Supreme Court has acknowledged its medical value.  “Compared to other over-the-counter substances, cannabis has the lowest potential for abuse, as it is impossible to die from an overdose: further, no studies have proven that the use of cannabis causes harms similar to those caused by the use of common over-the-counter medications, even at recommended dosages,” he wrote.  “In effect, the facts upon which marijuana was scheduled as one of the most dangerous narcotics in 1970 have been disproven.”

He also said that the government’s policy of not prosecuting those who comply with their state’s medical marijuana laws amounts to unequal prosecution based on where people live.  “The policy statement presented in the memorandum to U.S. Attorneys from Deputy Attorney General James Cole, issued on Aug. 29, 2013, by Attorney General Eric Holder has resulted in a discriminatory application of federal law, in that it protects similarly situated individuals from criminal sanctions for actions identical to that alleged to have been conducted by the defendant, and therefore violates the Equal Protection Clause,” Targowski wrote.

The government contends Taylor ran a large-scale drug operation that sold marijuana in Michigan, Indiana and Ohio.  He worked with a doctor for “certification clinics” for alleged patients, police said. The government said Taylor used the state’s medical marijuana law as a ruse.

As the title of this post suggests, I find the argument based on the Supreme Court's rejection of DOMA in the Windsor ruling the most intriguing (and perhaps most viable) argument here. Until I can see the defense's 86-page filing in this case, as well as the feds' response, I am disinclined to predict whether the defendant here will even secure an evidentiary hearing to present all his best evidence to attack federal marijuana law and policy.  But I am already inclined to predict that these kinds of arguments could become a real game-changer if hundreds of federal marijuana defendants were to start raising them in dozens of federal district courts.

UPDATE:  The lawyer representing Shawn Taylor in the federal indictment in the western district of Michigan reported to me via e-mail that he "essentially replicated work that has been successful in another case in the Eastern District of California, which has led to the scheduling of an evidentiary hearing later this summer to allow the defendant to raise the issues with expert testimony." He tells me that "California attorneys Zenia Gilig and Heather Burke wrote the originally brief in the ED of CA case {though] their work didn't get any press." He also provided this link to a California blog covering the case out there which has some pdfs of some key documents.

June 21, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Friday, June 20, 2014

New York pols work out deal to legalize only smoke-free medical marijuana

As reported in this New York Times article, "Gov. Andrew M. Cuomo and legislative leaders announced an agreement on Thursday for a pilot program to provide access to marijuana to sick New Yorkers, making the state one of the largest to embrace the drug’s use as medicine." Here is more:

The announcement came after days of intense negotiations between the Legislature and Mr. Cuomo, a Democrat, who had proffered a more restrictive system earlier this year that was roundly criticized as unworkable for thousands of potential patients.

The new agreement included a major demand of the Cuomo administration: that no smoking of the drug would be permitted, though a variety of other options — including edibles and tinctures — would be. Patients would also be allowed to inhale if the drug was vaporized, similar to e-cigarettes.

“There are certainly significant medical benefits that can be garnered; at the same time, it’s a difficult issue because there are also risks that have to be averted,” Mr. Cuomo said, mentioning safety and law enforcement concerns. “We believe this bill strikes the right balance.”

The State Health Department would oversee the program, which would contain a provision to “pull the plug” on it at any time, Mr. Cuomo said. He called that necessary to protect public health and public safety, adding that it “increases my comfort level a great deal.”

A small number of diseases would qualify patients for medical use, including AIDS, cancer, epilepsy and several serious degenerative conditions.

June 20, 2014 in Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Senate to vote on medical marijuana spending amendment

A few weeks ago, the House passed an amendment to the Department of Justice's budget bill that would restrict it from using funds to prevent states from implementing their own medical marijuana laws.  As I discussed at the time, I think the vote was incredibly significant politically, though the text of the amendment itself is actually quite  narrow.  

One of the key questions has been whether the amendment would gain any traction in the Senate.  Yesterday, news came that Senator Rand Paul has introduced the amendment and Cory Booker will has signed on as a co-sponsor.  It appears the vote will be coming soon (possibly today).  It will be very interesting to see how it plays out.

June 20, 2014 in Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, June 18, 2014

What is "knowing" possession of synthetic marijuana?

To convict soeone of possessing a controlled substance, the government must prove the person knew what they had.  (With the possible exception of--where else?--Florida.)  In other words, if a person thinks has marijuana in their hand but they think it is oregano, they aren't guilty of possession of a controlled substance.  This does not mean the government needs to prove a person knew it was against the law to possess the drug.  Ignorance of the law is no excuse, so telling the police that you didn't know cocaine was illegal is not going to help you out.  But, if you genuinely thought that what you possessed was sugar and not cocaine, then you may have a defense.

This principle can present interesting legal challenges, particularly when it comes to newly criminalized drugs like synthetic marijuana.  Part of the problem is that what is sold as "synthetic marijuana" is not necessarily always the same chemical.  A person may buy something marketed as "synthetic marijuana" without knowing what the intoxicant in it is or whether or not it has been made criminal.  

In these cases, what, exactly, does the government need to prove knowledge of?  Is enough to say that a person knew what they possessed has an intoxicating effect?  (If so, what about legal intoxicants like alcohol, tobacco or even caffeine?)  Is it sufficient to prove a person knew they were buying "synthetic marijuana," even if they didn't know what chemical was in it?  (Would the answer change if 1/2 of the chemicals marketed as "synthetic marijuana" were still legal to possess and sell while the other 1/2 had been criminalized?)

Yesterday, a Missouri appeals court addressed some of these issues in rejecting a challenge to a conviction for possession of synthetic marijuana.

Here are the facts:

Paul presented testimony at trial that she hosted a "card party" at her home on November 17, 2011. When Paul left her party briefly "for a beer run," her guests called her and asked if they could burn "K2" or "Mr. Happy" — both brand names for synthetic marijuana. One of Paul's guests had purchased the "Mr. Happy" at a gas station. Paul testified that she instructed her guests to wait until she got home because she was not familiar with the product.

 

When Paul returned home, she inspected the package. Paul testified that the substance's label warned that its contents were "not for human consumption," and that the label stated "probably three times" that its contents were "one hundred percent legal." After reading the "Mr. Happy" package, Paul allowed the cigarette to be burned in the ashtray "like . . . incense." Paul testified that no one actually smoked the substance. 

In rejecting Paul's appeal, the court held that "the State is required to prove that the defendant had knowledge of the general character of the substance — "i.e., that the substance was a drug of some sort, and not just baking power" — the State is not required to prove that the defendant knew the substance was illicit."

To the extent Paul is arguing that there was insufficient evidence to prove that she had knowledge of the substance's general character, that argument also fails. While there was testimony at trial supporting Paul's position, when properly viewing the record in the light most favorable to the verdict, the evidence is sufficient to prove beyond a reasonable doubt that Paul had knowledge of the general nature of the substance found in her kitchen. When Chief Garton found the substance in Paul's home, it was in an ashtray and was rolled up in a paper in a manner commonly used to smoke marijuana. Additionally, Paul testified that the "Mr. Happy" package referred to its contents as "hash"— a common slang term for marijuana and the short form of "hashish," which is the resin extract of the cannabis plant. See State v. Reiley, 476 S.W.2d 473, 473 (Mo. banc 1972). Finally, the substance's label made multiple statements regarding its legality. Based on this evidence, the circuit court could reasonably infer that Paul was not under the impression that the "Mr. Happy" product was simply incense and that she was aware of the substance's drug-like nature. Accordingly, the court did not err in failing to sustain Paul's motion for judgment of acquittal. The point on appeal is denied. 

While there may be a sound basis for the court's decision, I think its cursory discussion of Paul's arguments is problematic.  To be sure, the government does not need to prove Paul knew that possession of synthetic marijuana was illegal.  But it did need to prove she knowingly possessed the substance.  If all Paul knew was that the substance was named "Mr. Happy" and might be an intoxicant, however, I'm not sure that necessarily tells us she knowingly possessed a controlled substance.  

June 18, 2014 | Permalink | Comments (4)

Hillary Clinton, Rand Paul, ASA's new ad, and the shifting politics of drug policy

As the 2016 presidential election gets underway, two of the most prominent would-be contenders spoke about drug policy yesterday.   

Hillary Clinton was asked about medical and recreational marijuana laws at a CNN forum.  Clinton left herself a lot of wiggle room in her answer, particularly with respect to Colorado and Washington, saying she "wait and see what the evidence is" (or, perhaps, wait and see who her opponents and and what the polling says in the states she needs to win?  I kid, I kid.)  Still, her comments on medical marijuana are notable.  In 2008, Clinton took the "I don't think it's a good use of federal resources" approach to the issue, without saying anything that might sound like an endorsement of medical marijuana use.  Yesterday, Clinton was much more expressly supportive of medical marijuana, commenting: "I think for people who are in extreme medical conditions and who have anecdotal evidence that it works, there should be availability under appropriate circumstances."  It's far from endorsing state medical marijuana laws or changing federal drug laws.  But it is also a much stronger endorsement of medical marijuana than in her 2008 campaign (and, in my opinion, stronger than Obama's comments in 2008.)

 

Meanwhile, on the Republican side, Rand Paul criticized the drug war generally yesterday, telling the Iowa State Republican Party Convention: "If you look at the War on Drugs, three out of four people in prison are black or brown. White kids are doing it too. In fact, if you look at all the surveys, white kids do it just as much as black and brown kids -- but the prisons are full of black and brown kids because they don’t get a good attorney, they live in poverty, it’s easier to arrest them than to go to the suburbs. There’s a lot of reasons."  Rand Paul has said very similar things before, but the fact that he would include this in his remarks to an important primary state Republican audience says a lot about the new politics of drug policy.

Last but not least, Americans for Safe Access (disclosure: I serve on their board) released its latest ad targeting a medical marijuana-state Congressperson for voting against the recent medical marijuana budget amendment.

   

It's hard to believe how quickly the politics of drug policy are changing.  It wasn't that long ago that former Virginia Senator Jim Webb (who has also been mentioned as a possible 2016 presidential candidate) was lamenting the fact that "few candidates or elected officials these days even dare to mention the mind-boggling inconsistencies and the long-term problems that are inherent in [our criminal justice system]” because they believe that “to be viewed as 'soft on crime' is one of the surest career-killers in American politics.”  (The quote is from Webb's 2008 book A Time to Fight.) 

June 18, 2014 in Current Affairs, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Monday, June 16, 2014

Changing Pot Laws Prompt Child-Endangerment Review

The title of this post comes from this Associated Press article published yesterday on marijuana and child custody issues.  Here's how it begins:

A Colorado man loses custody of his children after getting a medical marijuana card. The daughter of a Michigan couple growing legal medicinal pot is taken by child-protection authorities after an ex-husband says their plants endangered kids.

 

And police officers in New Jersey visit a home after a 9-year-old mentions his mother's hemp advocacy at school.

 

While the cases were eventually decided in favor of the parents, the incidents underscore a growing dilemma: While a pot plant in the basement may not bring criminal charges in many states, the same plant can become a piece of evidence in child custody or abuse cases.

 

"The legal standard is always the best interest of the children, and you can imagine how subjective that can get," said Jess Cochrane, who helped found Boston-based Family Law & Cannabis Alliance after finding child-abuse laws have been slow to catch up with pot policy.

 

No data exist to show how often pot use comes up in custody disputes, or how often child-welfare workers intervene in homes where marijuana is used.

 

But in dozens of interviews with lawyers and officials who work in this area, along with activists who counsel parents on marijuana and child endangerment, the consensus is clear: Pot's growing acceptance is complicating the task of determining when kids are in danger.

The full article is worth a read.  Those interested in more about the issue may want to check out the website for the Family Law & Cannabis Alliance, which is mentioned in the article. 

June 16, 2014 in Current Affairs | Permalink | Comments (0)

Sunday, June 15, 2014

Is God a supporter of marijuana reform?

The question in the title of this post is my (only slightly) tounge-in-cheek response to this Christian Post article headlined "Oklahoma Senator Quotes Genesis 1:29 to Seek Marijuana Legalization." Here are excerpts:

Oklahoma state Sen. Constance Johnson announced the filing of a statewide initiative petition to legalize marijuana, telling supporters that the campaign is based on Genesis 1:29, which suggests that God created "this wonderful, miraculous plant."

"We're putting forth Genesis 1:29 as the basis of this campaign," KFOR.com quoted Sen. Johnson, a Democrat, as telling supporters at the State Capitol on Friday after filing the petition with the office of the Oklahoma secretary of state.

"God created this wonderful, miraculous plant and we know that it has been vilified for the last 100 years, and it's time to change that in Oklahoma," added the senator, who has led efforts, along with attorney David Slane, to legalize pot.  The advocates of marijuana will require 160,000 signatures from registered voters within three months to get the proposal on a statewide ballot....

The petition states that up to one ounce of marijuana should be allowed for recreational use, and three ounces for medical reasons.  The senator is of the opinion that resultant tax benefits would benefit the state.... Johnson also says that decriminalizing possession would ease the burden on prisons. "We're locking up non-violent, marijuana possessing people, giving them felonies and filling up our prisons."

"It's just the right thing to do. It's a plant. It's a God given plant and it could change the world," Fox 25 quoted a petition supporter, Pamela Street, as saying Friday....

Marijuana is different in nature from caffeine, Christian theologian John Piper wrote on the blog of his Desiring God ministry recently. While marijuana "temporarily impairs the reliable processing of surrounding reality," caffeine "ordinarily sharpens that processing," he said.

June 15, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Religion | Permalink | Comments (0)

Wednesday, June 11, 2014

"The DEA: Four Decades of Impeding And Rejecting Science"

Logo_headerThe title of this post is the title of this notable new report from the Drug Policy Alliance.  Here is an excerpt from the report's executive summary:

The Drug Enforcement Administration (DEA) is charged with enforcing federal drug laws. Under the Controlled Substances Act of 1970, its powers include the authority to schedule drugs (alongside other federal agencies) and to license facilities for the production and use of scheduled drugs in federally-approved research. Those powers are circumscribed by a statute that requires the agency to make its determinations based on scientific data.

The case studies compiled in this report illustrate a decades-long pattern of behavior that demonstrates the agency's inability to exercise its responsibilities in a fair and impartial manner or to act in accord with the scientific evidence – often as determined by its Administrative Law Judges.

The following case studies are included in this report:

  • DEA Obstructs Marijuana Rescheduling: Part One, 1973-1994
  • DEA Overrules Administrative Law Judge to Classify MDMA as Schedule I, 1985
  • DEA Obstructs Marijuana Rescheduling: Part Two, 1995-2001
  • DEA Overrules Administrative Law Judge to Protect Federal Monopoly on Marijuana for Research, 2001-2013
  • DEA Obstructs Marijuana Rescheduling: Part Three, 2002-2013

These case studies reveal a number of DEA practices that work to maintain the existing, scientifically unsupported drug scheduling system and to obstruct research that might alter current drug schedules.

June 11, 2014 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Science | Permalink | Comments (0)

Is a home rule/preemption local/state/federal legal battle brewing in Wenatchee, Washington?

Images (1)The question in the title of this post is prompted by this new New York Times article headlined, "With Marijuana Legalized, a City in Washington State Says, ‘Not So Fast’."  Here are the details of a legal battle that is sure to be followed closely by proponents and opponents of marijuana reform:

The first retail shops selling legal recreational marijuana in Washington State are preparing to open next month. Cash registers are standing by, and the first crops are almost ready for harvesting. But not every part of the state is joining the party.

The state attorney general, in a nonbinding legal opinion, has said local governments can regulate marijuana under the statute legalizing its recreational use, and at least 10 cities and counties in Washington have gone even further, banning marijuana businesses outright. An additional 69 municipalities, and 12 counties, have voted for moratoriums on such businesses, according to the Municipal Research and Services Center, a nonprofit group in Seattle that works with local governments on multiple issues.

Now, a lawsuit brought by a man who was denied a license to sell marijuana in Wenatchee in central Washington’s apple-growing country is challenging the rights of local governments to ban marijuana businesses — and also raising the possibility that the state’s marijuana law will come under sharp legal scrutiny.

The plaintiff, Shaun Preder, has been told by the city that he will not get a local business license to sell marijuana because the drug remains illegal under federal law — and that all Wenatchee businesses must comply with federal law. Mr. Preder, who runs an office furniture store in Woodinville, near Seattle, said he spent about $12,000 in rent for a 3,000 square-foot shop in Wenatchee that he had hoped to open for marijuana sales.  But uncertainty about a license has kept him from spending more to get the place ready.

Wenatchee’s City Council is scheduled to meet on Thursday to decide whether to respond to the suit, which was filed in Chelan County Superior Court . A resolve to fight — especially if the city takes the position that federal law pre-empts state law — could ultimately take the suit to the United States Supreme Court, where the conflicts between federal and state laws on marijuana have never been addressed, legal experts said.

Washington’s marijuana law could be affirmed by the courts, or struck down.  And what unfolds in Wenatchee, a city of about 33,000 that was closely divided from the start about the wisdom of legal marijuana — with a narrow majority in the county supporting it in 2012 — could set the stage.  Backers of legalization say it is a fight they are eager for, asserting that the statute will be affirmed.

“We need clarity,” said Alison Holcomb, the criminal justice director at the American Civil Liberties Union of Washington State and primary author of the Initiative 502 statute. Ms. Holcomb said the A.C.L.U. would seek to intervene in the case only if Wenatchee specifically claims federal protection for its position.  “The federal pre-emption issue hasn’t been resolved,” she said....

Mr. Preder’s lawyer, Hilary Bricken, said that no matter what the Council decides on Thursday, her client has already been harmed by Wenatchee’s actions because the Washington State Liquor Control Board, which regulates recreational marijuana, said it would proceed first in license applications in places where the local authorities are not trying to bar the door.  She said she would seek an emergency court order holding the city’s ban in abeyance if the suit goes forward.

June 11, 2014 in Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

1.8 grams of marijuana results in 20 month sentencing bump for federal gun defendant

Simple possession of marijuana is a federal crime.  Only a very very very small fraction of marijuana possession cases end up in federal court (for example, in 2010, there were about 1,000 federal marijuana possession cases disposed of in federal court (PDF) and 750,000 simple marijuana arrests nationwide.)  Compared to the number of people who use and smoke marijuana every year, the number of federal marijuana possession prosecutions is ridiculously small.  About 25 million Americans use the drug every year. But only an unlucky 1,000 or so end up in federal court for possessing it.   

Of course, even most of the marijuana simple possession defendants who end up in federal court are not facing very serious penalties--a first offense is a misdemeanor and carries no mandatory prison time.  

But the cliffs and bright lines of the federal sentencing guidelines--even in their advisory state--can sometimes change the equation and result in real federal time for possession of small amounts of marijuana.  Yesterday, in an unpublished decision (PDF), the Eleventh Circuit upheld a federal gun sentence that included an additional 20 months for possession of less than 2 grams of marijuana.  

Here are the relevant details:

Jabriel Fitzgerald Lakes appeals his 58-month sentence, imposed after pleading guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At the sentencing hearing, the district court enhanced Lakes’ base offense level by four points pursuant to U.S.S.G. § 2K2.1(b)(6)(B) because Lakes “used or possessed a firearm . . . in connection with another felony offense.” The district court found that, due to his prior drug convictions, Lakes’s possession of 1.8 grams of marijuana at the same time as his possession of a firearm constituted “another felony offense” under the language of 21 U.S.C. § 844(a). The court then imposed a 58-month sentence, which fell within the applicable guideline range of 57 to 71 months’ imprisonment. 

 

Lakes appeals the application of the four-point enhancement to his base offense level as substantively unreasonable, arguing that the resulting sentence is unduly harsh given the circumstances of this case. Lakes argues that application of the enhancement “resulted in a grossly disproportional sentence in light of the actual amount of marijuana” in his possession at the time of arrest. While Lakes concedes in his brief that his prior drug convictions would render him ineligible to receive misdemeanor treatment on the marijuana charge under 21 U.S.C. §§ 841(b)(4) and 844, he argues that an additional 20 months of imprisonment for possession of less than 2 grams of marijuana is patently unreasonable. 

 

...

 

At his sentencing hearing, Lakes pointed out that his applicable guideline range which would have been 37 to 46 months without the enhancement, jumped to 57 to 71 months “for such a small amount of drugs.” As stated by his lawyer at sentencing: “As a practical matter I don’t know that you could cover up my thumbnail with 1.8 grams of marijuana . . . I am certainly not excusing any of this stuff, but it’s just a small amount that—and such a large enhancement, really, for such a small amount of drugs.” Lakes stated that he was holding the marijuana for a friend, and not for himself. Accordingly, he argued, the application of the enhancement does not serve the factors enumerated in § 3553(a).

 

After three prior drug convictions, Lakes was caught with a loaded firearm while in possession of three separate bags of marijuana, subjecting him to the four- level enhancement under the advisory guidelines. The record demonstrates that the district court considered the parties’ arguments, the presentence investigation report, the Guidelines and the § 3553(a) factors when it pronounced its sentence. The sentence is within, and at the low end of the applicable guideline range. It is also below the statutory maximum, further lending itself to a finding of reasonableness. Thus, Lakes has not met his burden of showing that the district court abused its discretion in applying the enhancement. We affirm the district court’s sentence as reasonable. 

June 11, 2014 in Court Rulings, Federal court rulings | Permalink | Comments (0)

Could marijuana some day "become a new frontier in addiction medicine" to wean addicts from more dangerous drugs?

The question in the title of this post is drawn from an interesting quote in this notable story from public radio in Massachusetts.  The story, headlined "Could Medical Marijuana Help Stem The Opiate Addiction Crisis?," explores the possibility not only that addiction to marijuana for pain relief might be a lesser evil than addiction to other legal pain medications, but also the prospect of marijuana being used to help get people off of addictions to other more harmful substances.  Here are excerpts:

Marijuana is touted as a treatment for chronic pain, multiple sclerosis and anxiety — and some say it may be a way to help alleviate Massachusetts’ opiate crisis.  But that idea is causing some tension in the addiction treatment community.

Shelley Stormo is a clinical psychologist at Gosnold, the largest addiction treatment facility on Cape Cod.   She has secured provisional approval to open a medical marijuana dispensary in Fairhaven, and the state is now verifying her application. Stormo hopes by this fall, she’ll be able to help patients avoid opiates by using marijuana.

“I’m changing my efforts a bit to really focus on how to prevent addiction,” Stormo said.  “Through offering the medical use of marijuana as an alternative to potentially much more harmful and deadly opioids.”

Stormo says marijuana is safer for several reasons. “Marijuana does not have the physical addictive components that opiates do,” she said. “It does not have the propensity, as opiates do, for overdoses.  There’s no documented death by overdose of marijuana.”

Although Stormo does not advocate using marijuana to treat addiction, other medical marijuana professionals say the so-called gateway drug may one day be used as part of an exit strategy.  “Cannabis actually can be used as a harm-reduction medicine for patients to reduce their harm if they’re addicted to opiates, if they’re addicted to alcohol, if they’re addicted to cocaine,” said Thor Agustsson, a physician with Integr8 Health, a Burlington clinic that evaluates patients for medical marijuana use.

“There have been studies out that have shown cannabis, when they take it appropriately, is able to help them reduce their use of these other substances that are highly more toxic to their body.”   Most of the studies Agustsson is referring to are surveys or small trials, not fully randomized, controlled studies.  Agustsson says he is not currently using medical marijuana to treat someone who is addicted, but he thinks marijuana might eventually become a new frontier in addiction medicine.  “Plenty of patients that have come to me have already stated that, ‘if I use the cannabis, I’m not going to go to these other substances like alcohol or benzodiazepines or opiates,’” Agustsson said.

Other doctors, though, say the research is too preliminary. “I think it is very, very risky to try to replace one harmful, addictive substance with another harmful, addictive substance, and I think that is not underscored enough when people talk about marijuana,” said Dr. Kevin Hill, an addiction psychiatrist at McLean Hospital. Hill says about 9 percent of adults and 16 percent of adolescents who use marijuana become addicted. He treats patients who are addicted solely to marijuana

Hill does not believe that medical marijuana will make a major dent in opiate abuse because, he says, there are too many other factors involved in addiction.

That’s part of the reason why Shelly Stormo’s colleagues are so concerned about her plans to leave her job at Gosnold if the state approves her medical marijuana dispensary. “There were a lot of people concerned, who were shocked by it, because it seemed such an opposite value to what you usually talk about in addiction services,” said June Duarte, who was an addiction counselor at Gosnold. “And that’s no substances — abstinence, sobriety, recovery.”

June 11, 2014 | Permalink | Comments (0)

Tuesday, June 10, 2014

"What’s Next for Pot in Congress?"

CannabisHill_FB.4aabffc9fb3c5e7bfef73acc5067e886The question in the title of this post is the headline of this notable new article at CQ Roll Call.  Here are excerpts:

Activists cheered a House vote last month to bar the federal government from interfering with state medical marijuana laws.  It was a watershed moment for pro-marijuana advocates — and lawmakers on both sides of the aisle — who have been waiting for years for Congress to take an affirmative up-or-down vote on any related issue.

But in the afterglow of this long-sought legislative victory, it’s not clear just what comes next.  Will bipartisan support for the measure, adopted as an amendment to the House’s fiscal 2015 Commerce-Justice-Science appropriations bill, inspire future action in the chamber?  Will the Senate, poised in the weeks ahead to consider its own C-J-S bill, follow the House’s lead?...

Rep. Earl Blumenauer, one of the biggest stalwarts of legalizing marijuana, doesn’t agree that this will be the last word on the subject before the end of the 113th Congress.  The Oregon Democrat, who co-sponsored the House amendment, told CQ Roll Call he has had “several conversations” with senators who might champion a medical marijuana amendment in consideration of the C-J-S bill.  Plus, senators marked up their version of the spending measure in the Appropriations Committee last week, and adopted language blocking the Justice Department from using funds to deter research on industrial hemp.

Blumenauer also thinks two stand-alone measures he’s introduced could pass.  A bill that would allow legal marijuana businesses to benefit from tax deductions could become an amendment to a tax extenders package.  Another measure, which would permit such businesses to hold bank accounts, could hitch a ride on financial services legislation.   “There are number of things I think can happen between now and the end of this congressional session,” Blumenauer said. “I’m not at all discouraged.”...

A week after the dust settled, the “Vote Medical Marijuana” campaign housed within the advocacy group Americans for Safe Access demonstrated what else it could do with [House voting]  information.   On June 5, the organization announced it would air 30-second TV spots on MSNBC in Maryland and South Florida to target two members who voted “no” on the C-J-S amendment — Republican Andy Harris and Democrat Debbie Wasserman Schultz.

Americans for Safe Access spokesman Kris Hermes said the group hopes to run ads against other members leading up to the Nov. 4 midterm elections.   “I’m not going to say people shouldn’t vote for Wasserman Schultz or Harris, but I think it should weigh heavily on their decision on who to vote for, and our goal is to have a federal legislature, a Congress, that is voting consistently with the interests of its constituents,” Hermes explained.

Wasserman Schultz and Harris responded to the ads by defending their positions in written statements.   “I do not believe, regardless of the issue, that it is appropriate to limit the Executive Branch’s ability to enforce current federal law at their discretion,” said Schultz, who is also the Democratic National Committee chairwoman.  “As a cancer survivor, mother and lawmaker, I am acutely empathetic to the suffering of people with terminal illnesses and chronic pain.”

Harris, who was an anesthesiologist before coming to Congress in 2011, had a more technical gripe.   “The term ‘medical marijuana’ implies that marijuana is like any other medication that a physician, like myself, would prescribe,” Harris said. “It’s not.”

Whatever happens, there are members who support expanding access to marijuana who refuse to be daunted by political realities in the face of an exciting time to be working on the issue.   Count Colorado Democrat Jared Polis, another co-sponsor of the medical marijuana amendment, among them.   “History was made by politicians from both sides of the aisle, as we now have a majority of Congress on the record saying that states have the prerogative to regulate marijuana as they see fit,” Polis, whose state recently legalized marijuana for all purposes, said in an emailed statement. “I don’t know where this bill is going, but it sends a message.”

June 10, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, June 9, 2014

Massachusetts doctors, the DEA and the Conant case

As Doug noted on Friday, the DEA has apparently issued warning letters to a handful of Massachusetts doctors in connection with the implementation of the state's medical marijuana law.  Specifically, the DEA threatened to revoke the registrations of some physicians who are involved with medical marijuana-related companies in the state.  Doing so would leave them unable to prescribe other controlled substances, like Ambian or Xanax.  

As some readers may recall, this is not the first time the federal government has threatened doctors in this way.  Not long after Californians approved the first modern medical marijuana law in 1996, then-director of the ONDCP Barry McCaffrey announced that the DEA would seek to revoke the DEA registrations of physicians who recommended medical marijuana to their patients. 

A group of California patients and doctors filed suit to enjoin the DEA from going through with its registration revocation plan.  The case made its way to the Ninth Circuit, which held that the DEA’s plan was an unconstitutional infringement on physicians’ first amendment rights in Conant v. Walters, 309 F.3d 629 (2002).   The Ninth Circuit reasoned that “[b]eing a member of a regulated profession does not, as the government suggests, result in a surrender of First Amendment Rights.”  It held that preventing physicians from recommending medical marijuana to their patients would “strike at the core of First Amendment interests of doctors and patients.  An integral component of the practice of medicine is the communication between a doctor and a patient.  Physicians must be able to speak frankly and openly to patients.”

Are the DEA's threats to Massachusetts doctors at odds with Conant?  There are two key differences.

First, Conant was a Ninth Circuit case and Massachusetts is in the First Circuit.  For non-lawyer readers, this means that Conant is not binding on federal courts in the state.  So, even if the DEA's threats were in clear conflict with Conant's holding, the courts there would be free to disagree with the Contant decision.     (To be honest, I've always been a little bit surprised that the DEA did not continue to press the registration issue outside of the Ninth Circuit after Conant, particularly since a District Court in DC sided with the government on the issue.)    

Second, the Massachusetts doctors appear to be doing more than just recommending marijuana to patients.  According to this Boston Globe article, the doctors targeted by the DEA "are top administrators in companies approved by state regulators for preliminary medical marijuana dispensary licenses[.]"  As a result, courts may not see this as a free speech issue.  The Ninth Circuit's recent decision upholding a California law that bans gay conversion therapy comes to mind here.  In that case, the court distinguished Conant in part by drawing a line between speech and conduct.  

This is not to say that the DEA is on firm legal footing.  A court may very well find these threats to be legally flawed, just like the Ninth Circuit did in Conant.  But it is certainly not a slam dunk, even if federal courts in Massachusetts were bound by Conant (which they're not.)

While it's hard to say how a potential legal challenge to the DEA's threats would turn out, it seems clear to me that thia is a monumentally bad decision from a policy and political standpoint. 

In terms of policy, if we're going to have medical marijuana, I can't imagine why we would want to make it harder for physicians to be involved in the system.  In fact, we should be encouraging companies to hire on physicians as advisors and active participants. 

Politically, as Charles Pierce at Esquire put it: "The DEA Is Really Starting To Look Ridiculous."  Threats like this make the DEA look more and more out of touch--not just with public opinion but with the DOJ's official policy.  It makes no sense to allow recreational marijuana stores to do big business in Colorado and then turn around and threaten doctors who (by all appearances) are trying to make medical marijuana in Massachusetts function as legitimately as possible.

And, of course, the timing of this news could not be worse for the DEA.  If I were the DEA, I would be doing everything I could to lay low after the recent House vote to block DOJ funds from being used to interfere with state medical marijuana laws.  Granted, it sounds like the DEA's made these threats before the House vote.  But the news is being released just as the DEA needs to lobby the Senate to block the House amendment from actually becoming law.

The politics alone make me think that the DEA may quietly dial back these threats.  But, if they don't, we may have an interesting lawsuit testing the persuasiveness and limits of Contant to look forward to.

June 9, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Friday, June 6, 2014

Notable new federal drug war frontier: "DEA targets doctors linked to medical marijuana"

The title of this post comes from the headline of this lengthy Boston Globe report, which gets started this way:

US Drug Enforcement Administration investigators have visited the homes and offices of Massachusetts physicians involved with medical marijuana dispensaries and delivered an ultimatum: sever all ties to marijuana companies, or relinquish federal licenses to prescribe certain medications, according to several physicians and their attorneys.

The stark choice is necessary, the doctors said they were told, because of friction between federal law, which bans any use of marijuana, and state law, which voters changed in 2012 to allow medical use of the drug.

The DEA’s action has left some doctors, whose livelihoods depend on being able to offer patients pain medications and other drugs, with little option but to resign from the marijuana companies,where some held prominent positions.

The Globe this week identified at least three doctors contacted by DEA investigators, although there may be more. “Here are your options,” Dr. Samuel Mazza said he was told by Gregory Kelly, a DEA investigator from the agency’s New England Division office. “You either give up your [DEA] license or give up your position on the board . . . or you challenge it in court.”

June 6, 2014 | Permalink | Comments (0)

Thursday, June 5, 2014

State AG backs corporation in notable Colorado case concerning fired quadriplegic medical-marijuana patient

20140604__brandon-coats-colorado~p1_300As reported in this Denver Post piece, the Colorado "state attorney general's office says Coloradans do not have a right to use marijuana off the job, siding with a satellite television company in its firing of a medical-marijuana patient." This position is articulated in a brief filed in the Colorado Supreme Court in the notable case involving a quadriplegic medical-marijuana patient who was fired by Dish Network after testing positive for marijuana. Here is more of the context:

In a brief filed with the state Supreme Court last month, the Colorado attorney general's office argues that giving workers a right to use marijuana off duty "would have a profound and detrimental impact on employers in the state."

"Contrary to popular perception, Colorado has not simply legalized marijuana for medical and recreational purposes," state attorneys write in the brief. "Instead, its citizens have adopted narrowly drawn constitutional amendments that decriminalize small amounts of marijuana."

The Colorado Court of Appeals — the state's second-highest court — last year upheld Dish Network's firing of a quadriplegic medical-marijuana patient for a positive drug test. Although there is no allegation that Brandon Coats was stoned at work, the company said it has a zero-tolerance policy on marijuana.

Coats say his off-the-job marijuana use should be protected by Colorado's Lawful Off-Duty Activities Statute, which prevents companies from firing employees for doing things outside of work — like smoking cigarettes — that are legal. Dish Network argues that marijuana use can't be considered lawful while cannabis remains illegal federally.

In its brief supporting Dish Network, the state attorney general's office says zero-tolerance policies ensure that employees are able to perform their jobs competently. Requiring employers to prove that workers are stoned on the job before they can be fired would require companies to conduct "intrusive investigations into the personal life of an employee."

"Simply put, zero tolerance policies provide businesses with an efficient means of avoiding difficult employment decisions and even litigation," the attorney general's brief states.

Coats' case is the first time Colorado's highest court has taken up questions about the scope of marijuana legalization in the state, and it has drawn at least six outside groups filing briefs in support of Coats or Dish. The Colorado Mining Association, the Colorado Defense Lawyers Association and the Colorado Civil Justice League — which claims an allegiance with several businesses and groups including the Denver Metro Chamber of Commerce — have filed briefs on behalf of Dish. The Colorado Plaintiff Employment Lawyers Association and the Patient and Caregivers Rights Litigation Project have filed briefs supporting Coats.

The Supreme Court has not announced when it will hear the case.

June 5, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, State court rulings | Permalink | Comments (0)